United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE.
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.
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.)
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.
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.)
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.)
Facts of Underlying Litigation
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.)
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
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.)
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.
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.)