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Carter v. City of High Point

United States District Court, M.D. North Carolina

September 12, 2017

CRAIG CARTER, Plaintiff,
v.
CITY OF HIGH POINT, Defendant.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE.

         This matter is before the court on two motions: (1) a Motion for Default Judgment filed by Plaintiff Craig Carter (Doc. 11), to which Defendant City of High Point has filed a response in opposition (Doc. 15); and (2) a Motion to Set Aside Entry of Default filed by Defendant City of High Point (Doc. 13), to which Plaintiff has filed a response in opposition (Doc. 21). These matters are now ripe for resolution, and for the reasons stated below, Plaintiff's Motion for Default Judgment (Doc. 11) will be denied, and Defendant's Motion to Set Aside Entry of Default (Doc. 13) will be granted.

         I. BACKGROUND

         Plaintiff Craig Carter (“Plaintiff” or “Carter”) filed the Complaint in this matter on February 23, 2017, asserting violations of the Family Medical Leave Act (“FMLA”). (Complaint (“Compl.”) (Doc. 1).) The Summons and Complaint were served on Defendant City of High Point (“High Point”) on March 3, 2017, via certified mail, return receipt requested, to the Mayor of High Point. (Doc. 4; Ex. 1 (Doc. 4-1).) High Point asserts that on March 3, 2017, the Summons and Complaint package was received and signed for by a High Point meter reader who was providing temporary assistance in the mail room. (Def.'s Br. in Supp. of Mot. to Set Aside Entry of Default (“Def.'s Br.”) (Doc. 14) at 2.) From there the package was sent to an administrative assistant in the City Manager's office, then to the Deputy City Manager, and then to Human Resources. (Id.) The package was not sent to the Mayor or the City Attorney. (Id.)

         High Point failed to plead or otherwise defend as required by Rule 55(a) of the Federal Rules of Civil Procedure and, upon request of Plaintiff, default was entered on March 28, 2017. (Doc. 6.)

         On March 30, 2017, High Point's City Attorney received a copy of Plaintiff's motion for entry of default; it is alleged that this is when High Point first became aware of the lawsuit. (Def.'s Br. (Doc. 14) at 2-3.) The City Attorney immediately notified counsel for High Point who then contacted counsel for Plaintiff via telephone. (Id. at 3; see Pl.'s Br. in Supp. of Mot. for Default J. (Doc. 12) at 2.) Plaintiff's counsel informed High Point counsel that he was about to file a Motion for Default Judgment. (Pl.'s Br. in Resp. to Def.'s Mot. to Set Aside Entry of Default (“Pl.'s Resp.”) (Doc. 21) at 2.) High Point counsel requested that Plaintiff set aside the default. (Def.'s Br. (Doc. 14) at 3.) Plaintiff's counsel advised that he would consider a stipulation to dismiss the default in exchange for Defendant's agreement not to oppose an amendment to Plaintiff's Complaint. (Id.; Pl.'s Resp. (Doc. 21) at 3.) Both parties agreed that High Point counsel would draft a proposed stipulation to set aside default for consideration by Plaintiff. (Def.'s Br. (Doc. 14) at 3; (Pl.'s Resp. (Doc. 21) at 3.) The attorneys also agreed to speak again the next day, March 31, 2017. (See Def.'s Br., Ex. B (Doc. 14-2) at 2.) After conferring on March 31, the attorneys agreed to consult their respective clients regarding the issue. (Def.'s Br. (Doc. 14) at 4; Pl.'s Resp. (Doc. 21) at 3.) In the meantime, High Point counsel filed a Notice of Appearance. (Doc. 10.) After Plaintiff's counsel conferred with Plaintiff, he emailed High Point counsel of his intention to move forward with filing a motion for default judgment. (Def.'s Br., Ex. C. (Doc. 14-3) at 2.)

         Plaintiff's Motion for Default Judgment was filed on March 31, 2017. (Doc. 11.) High Point filed its Motion to Set Aside Entry of Default on April 7, 2017. (Doc. 13.)

         A. Facts of Underlying Litigation

         Carter began working for High Point on March 17, 2008. (Compl. (Doc. 1) ¶ 8.) The essential functions of Carter's job included maintaining overhead powerline equipment and maintenance of city powerlines and infrastructure. (Id. ¶ 10.) Carter alleges that he “adequately performed his job to the legitimate expectations of [High Point], he maintained consistently positive performance reviews, and did not have a disciplinary history prior to the discriminatory performance review that led to his termination.” (Id. ¶ 9.)

         In November 2014, High Point approved Carter for leave under the FMLA for knee surgery. (Id. ¶ 13.) Carter began taking FMLA leave around November 4, 2014, and returned to work around March 1, 2015. (Id. ¶¶ 13, 14.) On March 24, 2015, High Point issued Carter an employee performance appraisal that stated Carter's overall performance “met expectations, ” but his attendance and punctuality were below expectations stating he “does not accumulate sick leave well.” (Id. ¶ 15; Ex. 1 to Compl. (Doc. 1-1) at 7-8.)[1]

         Following his review of this performance plan, Carter was asked to meet with the director of High Point's electric department on April 10, 2015. (Compl. (Doc. 1) ¶ 17.) At this meeting, Carter was presented with the same March 24 performance appraisal, but it had been altered to show an overall performance of “below expectations, ” and his attendance and punctuality were altered to read “does not accumulate sick leave well as reflected from 3-18-14 to 11-4-14.” (Id. ¶ 18; Ex. 2 to Compl. (Doc. 1-2) at 7-8.) Carter also alleges he was presented with an employee improvement plan and was told to sign both the performance appraisal and the improvement plan or face termination. (Compl. (Doc. 1) ¶ 19.)

         On April 28, 2015, High Point held another meeting with Carter where he was reprimanded for having been tardy on one day since the implementation of the plan, and where he was also accused of making his team late to a job. (Id. ¶ 20.) Carter was suspended following that meeting. (Id.)

         On May 1, 2015, High Point held another meeting with Carter regarding his employment. (Id. ¶ 22.) On May 6, 2015, High Point notified Carter via telephone that he was being terminated. (Id.) On June 24, 2015, Carter attempted to appeal his termination to the City Manager, stating that he felt that his termination was related to his FMLA leave. (Id. ¶ 23.) Carter alleges that there “was a causal connection between Carter's protected activity, [and High Point's] negative performance review and termination.” (Id. ¶¶ 25-32.) Carter alleges he has suffered pecuniary injury because of his termination. (Id. ¶ 24.)

         II. ...


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