Free Order - District Court of Delaware - Delaware

Case 1:04-cv—O1383-SLB Document 51 Filed 02/20/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GERRON MAURICE LINDSEY, )
Plaintiff, g
v. g Civil Action No. 04-l383—SLR
NURSE BRENDA, i
Defendant. ;
O R D E R
At Wilmington this !GW·day of February, 2007, having
considered plaintiff’s pending motion for entry of default
judgment and attorney Dana Spring Monzo’s request for extension
of time to investigate the allegations in the complaint;
IT IS ORDERED that plaintiff's motion is granted and Monzo's
request is denied, for the reasons that follow:
l. Background. Process was served upon Nurse Brenda on
January 5, 2005. Brenda Holwerda, R.N. (“Holwerda”) signed a
return of waiver of service of summons on the same date. (D.I.
13) The return of waiver of service of summons signed by
Holwerda states, “I understand that a judgement may be entered
against me if a response is not served and filed within 60 days
after December l0, 2004." Id; Holwerda did not answer or
otherwise appear in the case.
2. On January 20, 2006, the court entered a show cause
order requiring Nurse Brenda to respond, on or before February

Case 1 :04-ov—O1383-SLR Document 51 Filed 02/20/2007 Page 2 of 4
21, 2006, to all outstanding discovery requests or show cause why
judgment should not be entered against her. (D.I. 42) The order
stated, “FAILURE TO TIMELY RESPOND TO THIS ORDER SHALL RESULT IN
JUDGMENT BEING ENTERED AGAINST DEFENDANT.” Ig; There was no
response to the order. On March I3, 2006, the court entered
another order advising plaintiff that he had until April 14,
2006, to apply to the court for an entry of default in appearance
against Nurse Brenda. (D I. 44) Plaintiff was advised that
“FAILURE TO TIMELY PURSUE THIS LAST AVAILABLE REMEDY WILL RESULT
IN DISMISSAL OF THIS CASE.” LQ;
3. On March 31, 2006, plaintiff timely filed a direction
to enter default judgment. (D.I. 45) He was subsequently
notified that there had not been proper service upon Nurse Brenda
and corrected the problem on April II, 2006, by sending a copy of
the motion to Nurse Brenda at the same address where she had been
served with process. (D.I. 47)
4. Nine months later, on January 2, 2007, attorney Dana
Spring Monzo, counsel for First Correctional Medical (“FCM"),
asked the court for a sixty day extension of time to investigate
the allegations in the complaint, to determine if Nurse Brenda
was an employee of FCM, and to determine whether the allegations
in the complaint occurred during a time when FCM was the
healthcare provider for the Delaware Department of Correction.
(D.I. 49)
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Case 1 :04-ov—O1383-SLB Document 51 Filed O2/20/2007 Page 3 of 4
5. Standard of Review. “When a party against whom a
judgment for affirmative relief has failed to plead or otherwise
defend as provided by these rules and that fact is made to appear
by affidavit or otherwise, the clerk shall enter the party's
default." Fed. R. Civ. P. 55(a). Judgment by default may be
entered as provided for in Fed. R. Civ. P. 55(b).
6. Discussion. It is clear from the record before the
court that Nurse Brenda has “failed to plead or Otherwise defend"
against the complaint as provided by the Federal Rules of Civil
Procedure. Nurse Brenda waived service of summons, acknowledged
that she was aware a response was due and faced default if she
did not respond, and repeatedly failed to respond to court orders
to appear in the case despite being warned that judgment would be
entered against her.
7. Attorney Monzo’s request for a sixty day extension of
time to investigate the allegations in the complaint is not well-
taken. At this late juncture, Attorney Monzo does not even know
if Nurse Brenda is her client. Moreover, the request was
dilatory, having been filed nine months after plaintiff requested
entry of default.
B. Conclusion. Accordingly, the motion for entry of
default judgment (D.l 45) is granted. The request for a sixty
day extension of time (D.I. 49) is denied. The clerk of the
court is directed to enter default judgment against Nurse Brenda
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Case 1:04-cv-01383-SLR Document 51 Filed O2/20/2007 Page 4 of 4
Helwerda pursuant t0 Fed. R. Civ. P. 55(b)(2). The clerk of the
ccurt is further directed tc mail a ccpy cf this crder t0 all
parties.
United Statgs District Judge
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