Johnson v. Orkin, LLC
| Decision Date | 08 May 2012 |
| Docket Number | Civil Action No.: 12-CV-00141 |
| Parties | IRENN H. JOHNSON Plaintiff, v. ORKIN, LLC; ORKIN PEST CONTROL; ORKIN EXTERMINATING, INC Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
COMES NOW, I, Irenn H. Johnson, Plaintiff, and pursuant Rule 55 and Rule 60 of the Federal Rules of Civil Procedure respectfully request the court to deny the Defendant's Motion To Vacate Entry of Default and For Leave To File Motion To Dismiss and To Compel Arbitration on the grounds that without regard to whether or not the default entered by the court constitutes a " default judgment" or "entry of default," the Defendant has not presented a sufficient basis to vacate the default order under Rule 55(c) or Rule 60(b) of the Federal Rules of Civil Procedure. Pursuant Title VII of the Civil Rights Act (as amended), and the Illinois Human Rights Act I hereby request the court to enter a judgment for the total damages as set forth in the complaint and whatever relief the court determines as appropriate.
In support of this motion, I, Irenn H. Johnson, Plaintiff, first being, duly sworn states under the oath the following as true and correct.
1. On March 7, 2005, I completed an employment application with the Defendant, who has over 500 employees, and was interviewed by Mark Fuss ("Fuss"), Regional Sales Manager and Call Center Manager on March 9. He offered me a position contingent the results of a background check, physical, and drug test. Due to the inherent financial volatile nature of the business, I expressed concernsregarding being terminated or laid off during slow periods. Not only did Fuss state that he had not terminated any employees in 5 1/2 years for these reasons, but went on to say that he had in fact promoted 2 employees. See Exhibit 1. On said date, I completed the pre-employment requirements.
2. On March 15, 2005, Shawn Allen, notified Fuss that the results of my criminal background check was outside company policy. See Exhibit 2. The criminal background investigation indicated that I had been arrested for criminal trespass to land. I was never convicted of this charge.
3. On March 18, 2005, Fuss rescinded the job offer. The reason that he gave me involved hours of availability. On said date, I hand-delivered a written request for my pre-employment records. See Exhibit 3.
4. On April 4,2005,1 was re-offered employment contingent upon physical results. The very next day, I was notified that medical results were completed.
5. On April 21, 2005, I started employment. On said date, Melanie Watkins and Larry Black prohibited me from modifying the arbitration agreement with the threat of termination.
6. On April 25, 2005,1 submitted a written request for my employment records. See Exhibit 4.
7. On June 8, 2005, I submitted a written complaint opposing discrimination and violation of the Illinois Personnel Record Review Act. See Exhibit 5.
8. On August 31, 2005, I was terminated.
9. Between September 1, 2005 and January 8, 2012, all conciliation efforts have failed and applicable administrative remedies were exhausted. See Exhibit 6.
10. On January 9, 2012, I filed a complaint alleging violations of Title VII of the Civil Rights Act (as amended) and the Illinois Human Rights Act in the US District Court Northern District of Illinois.
11. On January 20, 2012, the Defendant received a request for waiver of summons and complaint as evident by certified mail return receipt hereto and marked as Exhibit 7.
12. On March 17, 2012, I unofficially notified the counsel for the Defendant of the pending StatusConference requesting that they advise their "client or former client" accordingly. See Exhibit 8.
13. On March 19, 2012, the Defendant's counsel responded stating that "Orkin was not a proper party to [my] lawsuit" and that they were "not authorized" to accept service of process. See Exhibit 9. On said date, a summons was issued.
14. On March 21, 2012, a copy of the summons and complaint was personally served on Fuss. He scanned the papers and sent them via e-mail to Ms. Meribetth Ehlers ("Enters"), Midwest Division Human Resources Manager Fuss Peel, Para. 6. On the same day, Ehlers had the documents sent to Jefferson Blandford ("Blandford"), Orkin/ Rollins' in-house legal counsel. Blandford made an inquiry as to the delivery of the documents and Ehlers replied to the inquiry Ehlers Decl. para 5. Also on said date, a copy of the summons and complaint were served certified mail to the Defendant's counsel and received on March 27, 2012. See Exhibit 10.
15. On March 22, 2012, the court held a Status Conference where the counsel for the Defendant appeared informally out of "courtesy" stating that they were not authorized to accept service of process.
16. On April 19, 2012, the court entered an Entry of Default.
17. On April 27, 2012, the Defendant moved to vacate default and to dismiss.
18. Rule 55(c) of the Federal Rules of Civil Procedure provides for relief from entries of default, whereas Rule 60(b) provides for relief from judgments by default. See Fed. R. Civ. P. 55(c) and 60(h). Consistent with the traditional equitable powers of courts, Rule 55 provides relief from entries of default for "good cause shown." Fed. R. Civ. P. 55(c). With respect to default judgments, Rule 55(c) provides that "if a judgment by default has been entered, a court may likewise set it aside with Rule 60(b)." Fed. R. Civ. P. 55(c). The "standard to set aside the entry of default under Rule 55(c) is essentially the same as the standard for vacating a default judgment under Rule 60(b)." A motion to set aside a default requires a court to reconcile the goal of permitting the defaulting party an opportunity tocontest the merits of the dispute with the practical requirements of judicial administration and the desire not to prejudice a blameless party that has acted diligently Chrysler Credit Corp. v. Macino, 710 F.2d 363, 367 (7th Cir. 1983). Precedent teaches that a party's failure to show good cause for entry of a default alone is sufficient to warrant denial of a motion to vacate. See Zuelzke Tool, 925 F.2d at 230 (); accord, e.g., Travelodge Hotels. Inc. v. Taurus Hotels Corp., 179 F.R.D. 569, 571 (C.D. Ill. 1998) ) (defendant must meet all three requirements necessary to justify relief)). Binding case law has elaborated upon Rule 55(c) by requiring vacatur if the defendant shows (1) good cause for his default; (2) quick action to correct it; and (3) a meritorious defense to the complaint. Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir. 1994); O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394. 1401 (7th Cir. 1993);United States v. Di Mucci, 879 F.2d 1488, 1495 (7th Cir. 1989).The first consideration -- good cause for the defendant's default — may consist of "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(l);f2] Tate v. Riverboat Servs., Inc., 305 F. Supp. 2d 916. 919 (N.D. Ind. 2004). The second consideration — quick action to correct — looks at the time that passed between entry of default and the defendant's motion, yet it ultimately turns on the particular situation presented. See Jones v. Phipps, 39 F.3d 158, 165 (7th Cir. 1994). Factors that define such a situation are the litigant's reason for delay, his ability to learn about the grounds for judgment earlier, and the extent of prejudice suffered by the party seeking default Tate, 305 F. Supp. 2d at 923 ( Kagan v. Caterpillar Tractor Co., 795 F.2d 601. 610 (7th Cir. 1986)). Finally, the third consideration — the existence of a meritorious defense — does not necessarily require a winning defense but instead calls for "one which at least raises a serious question regarding the propriety of a default judgment and which is supported by a developed legal and factual basis." Jones, 39 F.3d at 165,In other words, a general denial or a bare legal conclusion that a defense exists will not suffice. See Pretzel & Stouffer, 28 F.3d at 46.
19. The Federal Rules of Civil Procedure contemplate that any challenge to the court's jurisdiction will be brought at a prejudgment stage by way of a Rule 12(b)(2) or 12(b)(5) motion to dismiss. Where the jurisdictional predicates are so challenged, it is settled that the plaintiff has the burden of establishing the jurisdictional facts. See, e.g., RAR. Inc. v. Turner Diesel. 107 F.3d 1272. 1276 (7th Cir. 1997). However, in a situation where a party seeks to vacate a default on jurisdictional grounds, the Seventh Circuit has imposed the burden of proof on the movant, usually the defendant, to establish the nonexistence of the court's jurisdiction. See Bally Expert Corp. v. Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986). The fact that the defendant had notice of the original proceedings but chose not to contest the jurisdictional issue until after entry of default judgment was significant to the Bally Expert court. Id. at 401.
20. [The] lack of communication between attorney and client was not a basis for showing of good cause C.K.S. Engineers. Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1207 (7th Cir. 1984).
21. It is held that "routine back-office problems ... do not rank high in the list of excuses for default..." Connecticut National Mortgage Co. v. Brandstatter, 897 F.2d 883. 884-85 (7th Cir.1990).
22. The Defendant's proffered reason to vacate the entry of default is not credible and the meritorious defense fails.
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