Rashidi v. Albright

• Decision Date: 10 February 1993
• Docket Number: No. CV-N-92-601-ECR.,CV-N-92-601-ECR.
• Parties: Manouchehr RASHIDI, Plaintiff, v. Harold G. ALBRIGHT, D. Roe and C. Roe, Natural Parents of Tim Roe, a minor child, and Nancy L. Parent, as Guardian Ad Litem for Tim Roe, a Minor Child, Defendants.
• Court: U.S. District Court — District of Nevada

818 F. Supp. 1354

Manouchehr RASHIDI, Plaintiff, v. Harold G. ALBRIGHT, D. Roe and C. Roe, Natural Parents of Tim Roe, a minor child, and Nancy L. Parent, as Guardian Ad Litem for Tim Roe, a Minor Child, Defendants.

No. CV-N-92-601-ECR.

United States District Court, D. Nevada.

February 10, 1993.

Dean R. Heidrich, Reno, NV, for plaintiff.

William G. Cobb, Erickson, Thorpe & Swainston, Reno, NV, for defendants.

C. Roe and D. Roe, in pro per.

ORDER

EDWARD C. REED, Jr., District Judge.

This case arises from the prosecution of two of approximately fifty-two civil cases against Manouchehr Rashidi in what was commonly referred to as the "Montessori" litigation involving alleged child abuse of minor students in a Montessori School. Defendants D. Roe and C. Roe are the parents of Tim Roe who was a former student of the school and on whose behalf the underlying civil litigation was prosecuted. Defendant Albright was the attorney for Tim Roe and Nancy L. Parent was Tim Roe's guardian ad litem. In the instant action, plaintiff Rashidi alleges that defendants' participation in the civil litigation amounted to malicious prosecution, abuse of process, negligence, civil conspiracy and malice and oppression. Defendants filed a motion for summary judgment with regard to all of plaintiff's claims (document # 15). Plaintiff, in addition to filing an opposition to said motion for summary judgment filed a request for this Court to enter a default judgment against defendants for failure to answer plaintiff's complaint under Fed.R.Civ.P. 55(b)(2) (document # 21). After receipt of plaintiff's notices of default, the plaintiffs filed a motion to strike notices of default and request for enlargement of time (document # 19).¹ The Court is prepared to rule on all the submissions before it at this time.

A. DEFAULT

The first issue that must be decided is whether or not defendants can avoid the default judgment requested by plaintiffs. Pursuant to Rule 55 of the Federal Rules of Civil Procedure, default judgment is appropriate when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules ..." Fed.R.Civ.P. 55(a). Plaintiff alleges that by failing to answer the complaint as required by Rule 12(a), defendants are subject to default. Plaintiff asserts that the summary judgment motion filed by the defendants does not amount to a defense of the action as contemplated by Rule 55 nor does it toll the time for the filing of an answer as contemplated by rule 12(a)(1).²

Failure to "otherwise defend" presumes the absence of some affirmative action on the part of a defendant which would operate as bar to the satisfaction of the moving party's claim. Wickstrom v. Ebert, 101 F.R.D. 26, 33 (E.D.Wisc.1984). In this context, it is generally held that challenges to matters such as service, venue and the sufficiency of the complaint preclude a default even if pursued in the absence of a responsive pleading. Id. citing 10 Wright, Miller & Kane, Federal Practice and Procedure § 2682 at 409-10 (2nd ed. 1983). It is undisputed that a motion challenging a complaint for failure to state a claim upon which relief can be granted falls squarely within the ambit of the phrase "otherwise defend." Other attacks on particulars have served to prevent default as well. See de Antonio v. Solomon, 42 F.R.D. 320 (D.C.Mass.1967) (Court denied plaintiff's motion for entry of default by finding that litigant's obligation to plead or otherwise defend was satisfied by his assertion of privilege against self incrimination even though allegations of complaint were not answered). If challenges less strenuous than those pleading to the merits can prevent the entry of default, clearly a summary judgment motion which speaks to the merits of the case and demonstrates a concerted effort and an undeniable desire to contest the action is sufficient to fall within the ambit of "otherwise defend" for purposes of Fed.R.Civ.P. 55.

In addition, defendants argument that the summary judgment motion should alter the period of time for serving an answer is not without merit. Although Rule 12 does not specifically allow for a summary judgment motion to toll the running of the period within which a responsive pleading must be filed, by analogy the language would seem to apply — particularly since a Rule 12(b)(6) motion is transformed to a Rule 56 Motion when matters outside the pleadings are considered by the court. See 10 Wright, Miller & Kane, Federal Practice and Procedure § 2718 at 670 (2nd ed. 1983).³

The ambiguity of the rules, makes disposition of this issue difficult. Generally the best course of action is to complete the pleadings for the record. Pleadings may help the parties involved and the Court to understand the relevant facts, issues and law. However, defendants' belief that the law supports the notion that a summary judgment motion falls within the scope of "defend" within the meaning contemplated by Rule 55 and that the summary judgment motion can toll the response time, minimally amounts to a good faith interpretation of the law or alternatively could be considered excusable neglect pursuant to Rule 6(b).

When an application is made to the Court under Rule 55(b)(2) for the entry of judgment by default the district court judge is required to exercise "sound judicial discretion" in determining whether judgment should be entered. 10 Wright, Miller & Kane, Federal Practice and Procedure § 2685 at 420 (2nd ed. 1983). See also Massa v. Jiffy Products Co., 240 F.2d 702 (9th Cir.1957) cert. denied 353 U.S. 947, 77 S.Ct. 825, 1 L.Ed.2d 856. Because the Court has discretion, a party making a request may not be entitled to default judgment as a matter of right even when the defendant is technically in default and that fact has been noticed under Rule 55(a). Consideration of factors such as whether the default is largely technical, whether the plaintiff has been substantially prejudiced by the delay, whether grounds for default are clearly established, and whether the Court thinks it later would be obliged to set aside the default on defendants' motion are factors this Court evaluated in determining whether or not entry of a default judgment would be appropriate in this matter.⁴

The ambiguity of the rules, the defendants' good faith interpretation of the law, the discretion allowed this Court and the policy to try cases on the merits rather than dispose of them on technicalities, combine to make entry of a default judgment in this matter inappropriate. Plaintiff's request for default (document # 21) is DENIED.

B. ANSWER TO COMPLAINT

The second issue that must be resolved is whether the defendants must answer the complaint before this Court rules on the summary judgment motion. As discussed above, the Federal Rules of Civil Procedure are unclear on this issue. The better practice would have been to file an answer; however, the rules allow a defending party to move for a summary judgment "at any time." Fed.R.Civ.P. 56(b). Reasons exist for the postponement of the responsive pleading until the determination of a motion for summary judgment which will be entirely dispositive of the action if the rules are construed as required by Fed.R.Civ.P. 1 to secure the just, speedy and inexpensive determination of every action. There seems little reason to require a long, burdensome and expensive investigation to file an answer when the contents of the answer may be entirely useless by the dispositive nature of the action on the motion. In Miller v. Hoffman, 1 F.R.D. 290 (D.C.N.J.1940) the court held that when a full release was the subject matter of the motion for summary judgment the answer would not be required. In some instances it may be necessary for a court to order defendants to file a responsive pleading before deciding the motion for summary judgment motion. In certain contexts this serves to help clarify issues and assist the court in determining whether there are any genuine issues of fact that would preclude granting of summary judgment. This Court could choose this course of action or deny the motion without prejudice and allow it to be renewed at a later time; however, the facts of this case make such delay and procedure unnecessary. Plaintiffs were able to answer the motion fully. Their opposition (document # 18) and response to defendants' reply are complete. There is no showing that the opposition would have been any different or any more comprehensive had a response to the complaint been filed. Plaintiffs assert in their opposition to summary judgment that certain facts could be proven if discovery were permitted (document # 18 Exhibit A). This assertion is not without merit; however, the Court finds that the record is sufficient with regard to the law and consideration of the facts that it would not be an abuse of discretion, even in light of these allegations, to decide the motion for summary judgment at this time. The Court is not precluded from deciding the summary judgment motion prior to the time the defendants answer the complaint. See First Nat. Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) (the Supreme Court affirmed a grant of summary judgment to a defendant who had never answered the complaint in more than six years of litigation).⁵ The defendant's motion for summary judgment is ripe for consideration.

C. SUMMARY JUDGMENT

Defendants assert that there are no facts upon which plaintiff can obtain recovery under any of the claims for relief alleged in the complaint.⁶ The Court agrees that the claims for abuse of process, negligence, malicious prosecution, conspiracy and the claims for punitive damages as a result of the defendants allegedly malicious and oppressive conduct fail.

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), ...