United States District Court, E.D. Arkansas, Pine Bluff Division
RODRIC D. COHNS ADC #131216 PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE
the Court are Findings and Recommendations submitted by
United States Magistrate Judge Patricia S. Harris (Dkt. No.
12). Plaintiff Rodric Cohns filed a timely objection to the
Findings and Recommendations (Dkt. No. 15). After careful
review of the Findings and Recommendations, a de
novo review of the record, and a review of the
objections, the Court adopts the Findings and Recommendations
as its findings in all respects (Dkt. No. 12). Furthermore,
the Court denies Mr. Cohns' pending motion to strike
response (Dkt. No. 17).
Cohns is currently seeking a writ of habeas corpus under 28
U.S.C. § 2254. Mr. Cohns filed his petition on June 13,
2018, and on July 26, 2018, Judge Harris entered an Order
directing the Clerk of Court to serve a copy of the petition
on respondent Wendy Kelley via regular mail (Dkt.
No. 6). In the same Order, Judge Harris directed Ms. Kelley
“to file an answer, motion, or other response, to the
petition . . . within twenty-one (21) days after service of
this petition, exclusive of the day of service.”
(Id.). On August 20, 2018, Mr. Cohns filed a motion
for default judgment against Ms. Kelley, arguing that Ms.
Kelley had failed to reply within 21 days of service and had
therefore defaulted (Dkt. No. 9). On August 21, 2018, Ms.
Kelley filed a response to Mr. Cohn's petition (Dkt. No.
objection, Mr. Cohns argues that, because Ms. Kelley's
response was filed “twenty five days after” Judge
Harris' Order was entered, Ms. Kelley's response is
untimely (Dkt. No. 12). In response, Ms. Kelley asserts that
she was served with Mr. Cohn's petition on July 31, 2018,
and that her response was therefore timely (Dkt. No. 16, at
1). In support of this assertion, Ms. Kelley presents the
memorandum of Chris Coody, a “Compliance Investigator,
” in which Mr. Coody states that “[a] Habeas case
was received on July 31, 2018[, ] . . . by U.S. Mail
Certified.” (Dkt. No. 16-1). Mr. Cohns then filed a
motion to strike Ms. Kelley's response and the
memorandum, arguing that Ms. Kelley's response
“presents lies and misinformation” and that the
memorandum “was introduced by respondent to insinuate a
false service date and cause confusion to petitioner and the
Court.” (Dkt. No. 17, at 2).
Court finds that Mr. Cohns has failed to show that he is
entitled to entry of a default judgment. First, while the
Court notes that the Eighth Circuit has not ruled on whether
habeas corpus petitioners are entitled to default judgment
under Rule 55(a) of the Federal Rules of Civil Procedure for
failures to answer, it appears that every other Court of
Appeals to consider the question has decided that such
petitioners are not entitled to default judgments or that
they are entitled to default judgments only in extreme
circumstances. Gordon v. Duran, 895 F.2d 610, 612
(9th Cir. 1990) (“The failure to respond to claims
raised in a petition for habeas corpus does not entitle the
petitioner to a default judgment.”); Aziz v.
Leferve, 830 F.2d 184, 187 (11th Cir. 1987) (same);
Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984)
(same); Broussard v. Lippman, 643 F.2d 1131, 1134
(5th Cir. Unit A Apr. 1981); Ruiz v. Cady, 660 F.2d
337, 341 (7th Cir. 1981) (finding that a five-day delay did
not entitle petitioner to a default judgment). Second, even
if habeas corpus petitions are governed by Rule 55(a) of the
Federal Rules of Civil Procedure, a party seeking a default
judgment must first submit proof to the clerk that the
opposing party has failed to plead or otherwise defend
itself. Fed.R.Civ.P. 55(a); Fraserside IP L.L.C. v.
Youngtek Solutions Ltd., 796 F.Supp.2d 946, 951 (N.D.
Iowa 2011) (citation and internal quotation marks omitted).
Mr. Cohns has failed to submit any proof of the date of
effective service upon Ms. Kelley, so he has failed to show
when Ms. Kelley's response was due. Because Mr. Cohns has
failed to submit the proof necessary for the clerk to enter a
default under Rule 55(a), the Court denies without prejudice
Mr. Cohns' motion for default judgment (Dkt. No. 9).
the Court denies Mr. Cohns' motion to strike because it
is directed at a response and an exhibit, not at a pleading.
Fed.R.Civ.P. 12(f) (stating that a court may “strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”);
see Donnelly v. St. John's Mercy Med. Ctr., No.
4:08-CV-347 CAS, 2009 WL 1259364, at *1 (E.D. Mo. May 5,
2009) (“Motions, briefs, memoranda, objections or
affidavits may not be attacked by a motion to strike.”)
therefore ordered that:
Court adopts the Findings and Recommendations as its findings
in all respects (Dkt. No. 12).
Cohn's motion for default judgment is ...