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.

Lewis v. Durham Wellness and Fitness, Inc.

United States District Court, M.D. North Carolina

September 15, 2017

PAUL A. LEWIS, Plaintiff,
v.
DURHAM WELLNESS AND FITNESS, INC., d/b/a MILLENNIUM SPORTS CLUB, PATRIK CONTEH and ROBERT J. NAUSEEF, Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster, United States Magistrate Judge

         This matter is before the Court on Plaintiff Paul A. Lewis' Motion for Entry of Default and for Default Judgment (Docket Entry 31) pursuant to Rule 55 of the Federal Rules of Civil Procedure, and Defendant Robert J. Nauseef s Motion to Dismiss (Docket Entry 19) pursuant to Rules 12(b)(2), (5), and (6) of the Federal Rules of Civil Procedure. The matters are ripe for disposition. For the reasons stated herein, it is recommended that Defendant's Motion to Dismiss be granted and Plaintiffs Motion for Entry of Default and for Default Judgment be denied.[1]

         I. PROCEDURAL BACKGROUND

         On March 14, 2017, Plaintiff filed a Complaint against Durham Wellness and Fitness, Inc., d/b/a/ Millennium Sports Club ("Millennium"), its owner and manager Patrik Conteh, and attorney and club member Robert J. Nauseef, along with an application to proceed in forma pauperis ("IFP"). (See Complaint, Docket Entry 1; IFP Application, Docket Entry 2.) The Court granted Plaintiffs IFP application (Docket Entry 4) and shortly thereafter, summonses were issued as to all Defendants (Docket Entry 6). An Affidavit of Service as to Defendant Nauseef was filed with the Court on April 10, 2017. (Docket Entry 8.) On April 24, 2017, Defendant Nauseef sought an extension of time to respond to the Complaint (Docket Entry 11) which the Court granted (see Text Order dated 04/27/2017).

         On May 5, 2017, Plaintiff filed an Amended Complaint against all Defendants. (Am. Compl., Docket Entry 17.) Defendant Nauseef then filed a Motion to Dismiss, and submitted a corrected brief in support of his motion on May 20, 2017. (See Docket Entries 19, 21.) On June 12, 2017, Plaintiff filed both a response in opposition to Defendant Nauseef s Motion to Dismiss (Docket Entry 30), and a Motion for Entry of Default and for Default Judgment against Defendant Nauseef. (Docket Entry 31.) Defendant Nauseef filed a response in opposition to Plaintiffs motion on June 15, 2017. (Docket Entry 32.) The undersigned then held a telephone conference with all counsel on record on June 22, 2017, at which time Plaintiffs counsel indicated that she would submit to the Court additional case law supporting Plaintiffs position on the Motion for Entry of Default and for Default Judgment, or alternatively voluntarily withdraw the pending motion. (See Text Order dated 06/22/2017.) Plaintiff then filed a supplemental motion (Docket Entry 34), along with an amended response in opposition to Defendant Nauseef s Motion to Dismiss. (Docket Entry 33.) Thereafter, Defendant Nauseef filed response and reply briefs on June 28, 2017. (Docket Entries 35, 36.)

         II. FACTUAL BACKGROUND

         According to the Complaint, Plaintiffs claims arise from the termination of his membership at Millennium, allegedly in violation of Tide III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (Am. Compl. ¶ 1, Docket Entry 17 at 1.) Plaintiff contends that he was a member of Millennium for more than twenty years. (Id. ¶ 19.) Due to his disabilities, Plaintiff would arrive to group fitness classes late and head to a spot in the front of the class. (Id. ¶¶ 24-25.) Plaintiff stood in the same positon because it was always available and because of his hearing issues. (Id. ¶ 26.) Defendant Conteh, owner and operator of Millennium, allegedly informed Plaintiff that he should go to the back of the class or not attend class if he was running late. (Id. ¶¶ 35, 37.) After failing to follow Defendant Conteh's instructions, Plaintiffs membership was terminated. (Id. ¶ 49.)

         Prior to filing this Complaint, on September 30, 2016, Plaintiff filed a complaint against Defendants Conteh and Millennium with the Consumer Protection Division of the North Carolina Department of Justice ("the NCDOJ"). (Id. ¶ 65; see also Docket Entry 1-4.) Defendant Nauseef, acting as Millennium's legal counsel, wrote a letter in response to the NCDOJ's inquiry into the complaint against Millennium. (Am. Compl. ¶ 66; see also Docket Entry 1-5.) In this letter, Defendant Nauseef wrote that "[t]he manager of the facility had spoken to [Plaintiff] on at least nine (9) occasions about his harassment of female members in the Zumba classes, his interruption and disruption of many of the Zumba classes and his intimidation and language while on the premises." (Docket Entry 1-5.) He also stated Plaintiffs behavior resulted in Millennium losing membership and indicated that Plaintiff had never communicated that he had a disability, nor would it have been a factor in the termination of his membership privileges. (Id.)

         Plaintiff alleges that the statements made by Defendant Nauseef in this letter to the NCDOJ were slanderous and defamatory. (Am. Compl. ¶ 73.) Plaintiff seeks relief from Defendant Nauseef on three grounds: defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. (Id. ¶¶ 90-108.) He also seeks punitive damages. (Id. ¶¶ 109-112.)

         In addition, Plaintiffs Amended Complaint added a claim of obstruction of justice against Defendant Nauseef for allegedly using his connections with the Durham County Sheriff to deliberately evade service of process. (Id. ¶¶ 113-122.) Defendant Nauseef was not personally served, rather the summons and Complaint were hand delivered to an employee at his law office by a process server unknown to Defendant Nauseef. (Affidavit of Robert J. Nauseef ¶¶ 6, 8, Docket Entry 21 at 20.)

         III. DISCUSSION

         A. Plaintiffs Motions for Entry of Default and for Default Judgment

         Entry of default is appropriate where "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). Additionally, pursuant to Federal Rule of Civil Procedure 55(b)(2), a court may enter a default judgment against a properly served defendant who fails to plead or otherwise defend against the allegations in the complaint. Fed.R.Civ.P. 55(b)(2). The Fourth Circuit has "repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claim and defenses be disposed of on their merits." Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). "A court must 'exercise sound judicial discretion in deciding whether to enter default judgment, and 'the moving party is not entitled to default judgment as a matter of right." Reynolds Innovations, Inc. v. E-Cigarette Direct LLC, 851 F.Supp.2d 961, 962 (M.D. N.C. 2012) (citation omitted).

         Here, Plaintiff has moved for an entry of default and for default judgment against Defendant Nauseef for failing to answer Plaintiffs Complaint within the twenty-one day period prescribed by Federal Rule of Civil Procedure 12(a)(1)(A)(i). (Docket Entry 31; see also Docket Entry 34.) Plaintiff argues that although Defendant Nauseef filed a motion to dismiss within the twenty-one day window, the ...


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.