United States District Court, W.D. Arkansas, Texarkana Division
LANEY J. HARRIS PLAINTIFF
THE CITY OF TEXARKANA, ARKANSAS, et al. DEFENDANTS
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
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:
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.
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.
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.
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.
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
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.
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.
on the foregoing, Plaintiff's Amended Motion to Strike
Answer and for Default ...