Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Firearm Owners Against Crime v. City of Harrisburg

United States District Court, M.D. Pennsylvania

May 5, 2015

FIREARM OWNERS AGAINST CRIME, et al., Plaintiffs
v.
CITY OF HARRISBURG, et al., Defendants.

MEMORANDUM

YVETTE KANE, District Judge.

Before the Court are five motions: Plaintiffs' motion for entry of default (Doc. No. 8); Defendants' motion to amend or correct the notice of removal and civil cover sheet (Doc. No. 12); Defendants' motion to vacate default judgment and enjoin the state court (Doc. No. 14); and Defendants' motion to strike Plaintiffs' motion for entry of default[1] (Doc. No. 16). For the reasons that follow, the Court will deny Plaintiffs' motion for entry of default (Doc. No. 8); deny as moot Defendants' motion to strike the motion for default (Doc. No. 16); grant Defendants' motion to amend their notice of removal (Doc. No. 12); and grant in part Defendants' motion to vacate the state court default and enjoin further state court action (Doc. No. 14).

II. BACKGROUND

This case concerns challenges under state and federal law to a series of gun ordinances enacted by Defendant City of Harrisburg. (Doc. No. 1-1.) However, the present memorandum and order do not concern the substance of Plaintiffs' challenge to the ordinances, but are instead addressed to a clerical error that precipitated a battery of procedural motions.

On January 16, 2015, four plaintiffs, Firearm Owners Against Crime, Kim Stolfer, Joshua First, and Howard Bullock, filed a complaint against Defendants City of Harrisburg, Mayor Eric Papenfuse, and Police Chief Thomas Carter in the Court of Common Pleas for Dauphin County, Pennsylvania. (Doc. No. 1-1 at 4; Dauphin County Court of Common Pleas Docket Sheet, 2015-CV-00354-EQ, at 3.) On February 13, 2015, Defendants removed that action to this Court on the grounds that Plaintiffs' claim under the United States Constitution confers federal question subject matter jurisdiction on this Court. (Doc. No. 1 at 1-2.) In their removal documents, however, Defendants listed only three of the four plaintiffs on their notice of removal and civil cover sheet, omitting Howard Bullock. (Doc. No. 1 at 1.) Evidently, Defendants repeated this error in their notice filed with the Dauphin County Court of Common Pleas. (Dauphin County Court of Common Pleas Docket Sheet, 2015-CV-00354-EQ, at 4.) However, Plaintiff Bullock is listed in the original state court complaint that Defendants furnished to this Court with their notice of removal. (Doc. No. 1-1 at 4.) Defendants filed their substantive motion to dismiss Plaintiffs' federal claims on February 20, 2015, and Plaintiffs responded with their own motion to remand this action back to the state court on February 22, 2015. (Doc. Nos. 4, 5.) In their motion to remand, Plaintiffs alerted Defendants for the first time to the omission of Plaintiff Bullock from their removal documents. (Doc. No. 3 ¶¶ 1-10.) Due to this omission, Plaintiffs argue that "Defendants are now precluded from removing Howard Bullock, pursuant to 28 U.S.C. § 1446." (Id. ¶ 9.)

On February 27, 2015, Plaintiffs separately asked this Court to enter default against Defendants based on alleged deficiencies under Federal Rule of Civil Procedure 8 in Defendants' filings with the Court - deficiencies unrelated to the clerical error in the notices of removal.[2] (Doc. No. 8.)

Meanwhile, despite removal, Plaintiff Howard Bullock, who was not listed by name in the removal documents, sought and received a default judgment against Defendants in the Dauphin County Court of Common Pleas on March 3, 2015. (Dauphin County Court of Common Pleas Docket Sheet, 2015-CV-00354-EQ, at 4.) In that action, Plaintiff Bullock is represented by the same counsel, Joshua Prince, who is listed for his co-Plaintiffs before this Court. Attorney Prince also verified Plaintiff Bullock's complaint before the state court. (Doc. No. 1-1 at 93.) Defendants are contesting the default rendered against them before the state court, and they also filed motions with this Court on March 12, 2015, (1) for leave to amend their notice of removal and (2) for an order to vacate the state court default and enjoin the state court from further action. (Doc. Nos. 12, 14.) On March 16, 2015, once Plaintiffs' time to file a brief in support of their motion for entry of default with this Court had elapsed with no brief filed, Defendants filed a motion to strike Plaintiffs' motion for entry of default for failure to comply with local briefing rules. (Doc. No. 16.)

II. DISCUSSION

The Court addresses the motions in two groups, beginning with Plaintiffs' motion for default (Doc. No. 8), and Defendants' motion to strike it (Doc. No. 16). The Court then addresses Defendants' motions to amend their notice of removal (Doc. No. 12), and Defendants' motion to vacate and enjoin state court proceedings (Doc. No. 14).

A. Motions for default and to strike

Plaintiffs seek default because Defendants failed to refer to Plaintiffs by name in their motion to dismiss. (Doc. No. 8 ¶¶ 8-10) ("Nowhere within Defendants' Motion to Dismiss do Defendants name any of the Plaintiffs - FOAC, Kim Stolfer or Joshua First[.] The only entity referenced in relation to Defendants' Motion to Dismiss is Firearm Owners, ' which is neither a Plaintiff in this matter nor defined anywhere within their pleading.") Plaintiffs did not follow their motion filing with a brief in support, and Defendants did not file any opposing papers. Instead, Defendants filed a motion to strike Plaintiffs' motion once the briefing schedule had elapsed. (Doc. No. 16.)

Under Federal Rule of Civil Procedure 55(a), "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). A motion to dismiss under Federal Rule of Civil Procedure 12 unquestionably precludes the entry of default as to the filer of the motion pending the court's disposition of the motion. See Fed.R.Civ.P. 12(a)(4)(A). In addition, a motion must be "in writing unless made during a hearing or trial;" must "state with particularity the grounds for seeking the [court] order;" and must "state the relief sought." Fed.R.Civ.P. 7(b).

Plaintiffs have raised a technical ground for seeking default, arguing that Defendants' motion was not effective as to Plaintiffs because it did not mention each Plaintiff by exact name. (Doc. No. 8 ¶¶ 8-10.) The Court disagrees, and finds that Defendants have not "failed to plead or otherwise defend" as a prerequisite for the entry of default. There is no indication that Plaintiffs' substantive positions differ from each other at all, there are no other parties to whom the motion could have been addressed, and Defendants' motion and brief contain arguments addressed to both the entity Plaintiff and the natural person Plaintiffs. (E.g., Doc. Nos. 4 ¶¶ 2, 7; 10 at 16-18.) In addition, even were the entry of default proper, a default judgment based on the alleged deficiencies with Defendants' motion would not be warranted. Courts in this circuit weigh the so-called Poulis factors when considering entering default judgment or lifting a judgment already entered. Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 919 (3d Cir. 1992). Those factors are:

(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party of the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.