City of Texarkana

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Civil No. 4:18-cv-04091 (W.D. Ark. Nov. 7, 2018)

Civil No. 4:18-cv-04091




Pending now before the Court is Plaintiff's Amended Motion to Strike Answer and for Default Judgment. ECF No. 12. Defendants have responded to this Motion. ECF No. 13. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Susan O. Hickey referred this Motion to this Court. A hearing was held on this Motion on November 5, 2018. After considering this Motion and arguments of counsel, the Court finds as follows: 1. Background:

Laney Harris ("Plaintiff") is a City Director for the City of Texarkana, Arkansas. Plaintiff filed his pro se Complaint on June 5, 2018. ECF No.1. In his Complaint, Plaintiff named as Defendants the other six elected City Directors and the city of Texarkana, Arkansas. Id. The suit sets forth ten separate causes of action, including claims pursuant to 42 U.S.C. § 1983, along with state law claims of defamation, libel and slander, breach of fiduciary duties, unjust enrichment and outrage. Id.

All of the allegations against the individual Defendants are stated as arising out of official statements made while acting in the course of their duties as city officials. Id. During the hearing, the only claim Plaintiff argued which was unique to an individual Defendant was contained in Paragraph 104 of his Complaint and involved Defendant Tim Johnson. ECF No. 1, Pg. 19. This instance was a single paragraph contained within a 24 page portion of the Complaint which is titled "Statement of Facts." Id.

With this Motion, Plaintiff seeks to strike the answer of Defendants Tim Johnson and Travis Odom. He also seeks the entry of a default judgment against these Defendants for failure to file a timely answer. ECF No. 12. According to Plaintiff, Defendants Tim Johnson and Travis Odom were served with the Complaint on July 13, 2008 and did not file their Answer until August 24, 2018. Id.

Defendants Tim Johnson and Travis Odom dispute the date they were served with the Complaint; however, they set forth nothing to establish a later date other than to allege a service date of August 3, 2018. ECF No. 14. Alternatively, Defendants argue Plaintiff's Motion should be denied based on the Common Defense Doctrine. Id. 2. Discussion :

According to the Affidavit of Service filed on September 6, 2018, Defendants Tim Johnson and Travis Odom were both served on July 13, 2018. ECF No. 8. --------

In a multiple defendant lawsuit, a default judgment should be avoided where the entry of default would create an "inconsistent and unsupportable" result. U.S. ex rel. Costner v. United States, 56 Fed.Appx. 287, 288 (8th Cir. 2003). "When co-defendants are similarly situated, inconsistent judgments will result if one defendant defends and prevails on the merits and the other suffers a default judgment." Angelo Iafrate Const., LLC v. Potashnick Const., Inc., 370 F.3d 715, 722 (8th Cir. 2004). To avoid inconsistent results, a judgment on the merits for the answering party should accrue to the benefit of the defaulting party. Id. Similarly, Arkansas law recognizes the common-defense doctrine which provides that an answer that is timely filed by a co-defendant inures to the benefit of a defaulting co-defendant. See Sutter v. Payne, 337 Ark. 330, 335, 989 S.W.2d 887, 889 (1999). If an answering co-defendant asserts "a defense on the merits that equally applies to the other defendant," the success of the defense "operates as a discharge to all the defendants." Angelo Iafrate Const., LLC, 370 F.3d at 722; Sutter, 989 S.W.2d at 889.

Defendants Tim Johnson and Travis Odom are two of seven separate defendants in this case. Defendants Barbara S. Miner, Terri Kenner Peavy, Penny Ruth-Bell, Linda Teeters and City of Texarkana, Arkansas each filed timely answers. ECF Nos. 5, 7. Based on allegations of Plaintiff's Complaint, the Defendants are all similarly situated, and Defendants Barbara S. Miner, Terri Kenner Peavy, Penny Ruth-Bell, Linda Teeters and City of Texarkana, Arkansas have all asserted defenses on the merits that would apply to Defendants Tim Johnson and Travis Odom. If this Court were to enter a default judgment against Defendants Tim Johnson and Travis Odom and the remaining Defendants subsequently prevailed on the merits, inconsistent judgments would result.

Further, default judgments are generally disfavored in the law and should not be granted merely because a defendant failed to meet a procedural time requirement. See Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000). In this matter, Defendants Tim Johnson and Travis Odom Answer was filed late by Plaintiff's argument only three (3) weeks late. There will be no prejudice to Plaintiff in the denial of this motion. There has been no discovery or other pre-trial activity by any party. This litigation is in the very early stages with a current trial setting a year away, on October 21, 2019. ECF No. 19.

3. Conclusion:

Based on the foregoing, Plaintiff's Amended Motion to Strike Answer and for Default Judgment (ECF No. 12) is DENIED.

ENTERED this 7th day of November 2018.




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