Motion to Strike
Eli Newberger's Answer to Amended Complaint and Motion to Dismiss

Eli Herbert Newberger, the Doctor Dread of Sexual Abuse Allegations, is in DEFAULT. He was to file a responsive pleading -- e.g., an Answer or a Motion to Dismiss -- within 20 days of being served.   Iwaited 6 or so weeks before filing a Motion for Default.  The court then gave him approximately another 3 weeks before entering default into the docket. I filed the motion below because Newberger did not move to "set aside" or "vacate" the default before he filed an Answer and a Motion to Dismiss. I contend that Newbie does not have the standing to file any pleading except a motion to set aside or vacate the default. Newbie will likely file his motion to vacate the default, but he must "destroy" the default by spelling out a reason for his lateness . . . and that reason must show "good cause" . . . something similar to finding an alibi for 6 or 8 weeks. (I'm not about to say here whether there might be other reasons. Let's wait until it plays out! Of course, after Newbie files his motion to vacate the default, I'll file an opposition to it. At that time, I'll argue, at the very least, that his excuse for not filing an Answer or a Motion to Dismiss in a timely manner is not a good excuse . . . that he has shown "no good cause" and that his "neglect is not excusable." Two different pleadings, two different standards. It can go either way. Let's keep our fingers crossed.

 

UNITED STATES DISTRICT COURT FOR THE  EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 00-CV-11048-REK  --------------------------------------------------- Theodore S. Brown  James Linnehan  Jane & John Does                                                   Plaintiffs  v. Eli Newberger  Children's Hospital Amy C. Tishelman  Barbara Cohen  Brockton Division of the       District Court Department       of the Trial Court of Massachusetts Mass. Dept. of Social Services  Eileen Kern  Sandra Fyfe  Christopher Salt  Jack McCarthy, Jr.  John and Jane Smiths                                                 Defendants ------------------------------------------------------   MOTION TO STRIKE ELI NEWBERGER'S  ANSWER TO AMENDED COMPLAINT AND MOTION TO DISMISS

Now come Plaintiffs Theodore Brown, James Linnehan, and the as-yet unidentified Jane and John Does and move to strike Defendant Eli Newberger's Answer and Motion to Dismiss. As grounds, Plaintiffs state that "[a] person defaulted has no standing in court except to take off the default." Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, 20 (1899). It is the law that once a default is entered, a defendant on default has no further standing to contest the factual al- legations of plaintiff's claim for relief. Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885). When a Court determines, . . . that a defendant is in default, its liability to the plaintiff is deemed estab- lished and the plaintiff is not required to establish his right to recover. United States v. Borchers, 163 F.2d 347 (2 Cir. 1947). See also I.C.C. v. Smith, 82 F.Supp. 39 (D.C.Pa.1949). Defendant is deemed to have admitted all well pleaded allegations in the complaint. Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2 Cir. 1971). [At the most, all that defendant can do is question the extent of the damages suffered by the plaintiff.] Trans World Air- line, Inc. v. Hughes, 332 F.2d 602 (2 Cir. 1964). See also Trans World Airlines, Inc. v. Hughes, 449 F.2d at 72, reversed on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). Caribbean Produce Exchange v. Caribe Hydro-Trailer, Inc., 65 F.R.D. 46, 48 (D.C.Puerto Rico 1974) (subsequent to entry of default, defendant's argument of a late propounded affirmative defense was improper). Taylor v. City of Ballwin, Missouri, et al, 859 F.2d 1330 (1988) (same), quoting Caribbean, supra and Thomson, supra. . . . a judgment by nil dicit at common law, and to judgment for plaintiff on demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21. It was said in Hawkins v. Crook, qua supra, and quoted in 2 Eq. Cas. Abr. 179, that 'the method in equity of taking a bill pro confesso is consonant to the rule and practice of the courts at law, where, if the defendant makes default by nil dicit, judgment is immediately given in debt, or in all cases where the thing demanded is certain; but where the matter sued for consists in damages, a judgment interlocutory is given; after which a writ of in- quiry goes to ascertain the damages, and then the judgment follows.' The strict analogy of this proceeding in actions of law to a general decree pro confesso in equity in favor of the complainant, with a reference to a master to take a necessary account, or to assess unliquidated damages, is obvious and striking. Thomson, 114 U.S. at 110-111. (Fed.R.Civ.P. 55 now incorporates features of the pro confesso decree and divers equity rules.) In a nutshell, "to answer the complaint and to defend on the merits . . . [the defendant] must first destroy the default judg- ment. . . . " Willette v. Umhoeffer, 245 A.2d 540, 543 (Me. 1968). "The defendant must establish his excusable neglect, and this he has not yet done." Id. at 544.  In sum, neither Newberger nor his defense counsel is excused from compliance with the relevant rules of substantive and proce- dural law. Cf. Pandey v. Roulston, 419 Mass. 1010, 1011 (1995) (party's pro se status does not "excuse him from compliance with relevant rules of substantive and procedural law"). "Rules of court are indispensable to the orderly and efficient conduct of a court's business. They are not to be set aside . . . or dictated by the caprice or design of counsel." Com. v. Cooper, 356 Mass. 74, 79 (1969). "Caprice would then be substituted for law." Clabburn v. Phillips, 245 Mass. 47, 52 (1923) (cite omitted). Given that Newberger had no standing, his pleadings were wrongly accepted for filing. Although filed by ministerial error, the motions should not be treated as if they had been properly filed. "Courts cannot abandon a plain rule of law at will in order to accomplish what some might think a closer approach to the ideal in a particular case." Id. at 52. WHEREFORE, Plaintiffs pray that this motion be allowed.                                                                        Respectfully submitted,                                                                        PLAINTIFFS,                                                                        By their attorney,    23 December 2000                                    ____________________________                                                                        Barbara C. Johnson, Esq.                                                                        6 Appletree Lane                                                                        Andover, MA 01810-4102                                                                        978-474-0833    CERTIFICATE OF SERVICE