United States District Court, D. Delaware
SHARON M. JAMES, Plaintiff,
A.C. MOORE ARTS AND CRAFTS INC/SBAR'S INC., et al., Defendants.
M. James, Wilmington, Delaware, Pro se Plaintiff.
K. Voss, Esquire, and Jennifer Penberthy Buckley, Esquire,
Potter Anderson & Corroon, LLP, Wilmington, Delaware.
Counsel for Defendants.
CONNOLLY, U.S. District Judge
Sharon M. James, ("Plaintiff) who appears pro
se9 commenced this employment
discrimination action on the basis of age pursuant to the Age
Discrimination in Employment Act of 1967, as amended, 29
U.S.C. §§ 621, et seq. ("ADEA"),
on January 8, 2018. (D.I. 2) The Court has jurisdiction
pursuant to 28 U.S.C. § 1331. Before the Court are
Plaintiffs motion for default judgment (D.I. 19) and motion
to dismiss Defendants' opposition to the motion (D.I.
27), as well as Defendants' motion to dismiss Plaintiffs
amended complaint (D.I. 28). The matters have been briefed.
alleges employment discrimination as a result of her
employment with Defendant A.C. Moore Arts & Crafts, Inc.
("A.C. Moore"). In addition to A.C. Moore, Plaintiff
names as Defendants Laura Doron ("Doron") and
Starmane Hayman ("Hayman"). The operative pleading
consists of Docket Items 2, 9, and 12 and, collectively, they
allege age discrimination, retaliation, and workplace
harassment/hostile work environment.
began working for A.C. Moore in July 2009 and, in March 2013,
was employed as an activity and custom framing specialist.
(D.I. 2 at 5) As of September 6, 2017, she held the position
of cashier, a position she alleges was the result of
demotions. (Id. at 8) Plaintiff has filed four
charges of discrimination with the EEOC and the Delaware
Department of Labor ("DDOL") as follows:
(1) EEOC No. 17C-2013-00290 (JAM022213), dated March 6, 2013,
presented to the DDOL on February 22, 2013, alleges
discrimination based upon age (56) occurred on January 21,
2013, when A.C. Moore decreased Plaintiffs work hours and her
hours were given to younger employees (Id. at 5);
(2) EEOC No. 17C-2013-00548 (JAM061413), dated July 3, 2013,
presented to the DDOL on June 14, 2013, alleges retaliation
occurred from May 23, 2013 through June 10, 2013 when
Plaintiffs hours and responsibilities were systematically
reduced, other individuals were hired to perform her duties,
and she received a low performance evaluation in retaliation
for filing Charge of Discrimination 17C-2013-00290; the
charge alleges a continuing action (id. at 6); (3)
EEOC No. 17C-2016-00244 (JAM012015), dated February 8, 2016,
presented to the DDOL on January 20, 2015, alleges
retaliation from January 21, 2013 through January 20, 2015,
in the form of demotion to cashier/janitor, adverse
assignments, discipline, and attempts to force Plaintiff to
resign due to previously filed charges of age discrimination
JAM022213 and retaliation JAM061413; the charge alleges a
continuing action (id. at 7); and (4) EEOC No.
17C-2017-00722F, dated September 6, 2017, presented to the
DDOL on August 3, 2017, alleges retaliation from July 22,
2014 through July 24, 2017, when Plaintiff was harassed and
subjected to a hostile work environment when the locker
Plaintiff had used for eight years was reassigned to another
employer, and Plaintiff was demoted to cashier for a
previously filed charge of discrimination (id. at
October 1, 2015, the EEOC issued a notice of suit rights for
EEOC Charge 17C-2013-00290. (Id. at 11) Plaintiff
states the notice of suit rights is for EEOC Nos.
17C-2013-00290 and 17C-2013-00548, and that the first two
charges of discrimination were dismissed by the head EEOC
investigator. (Id. at 9, ¶¶ 1-2) Plaintiff
states that she requested a notice of right to sue letter for
the third and fourth charges of discrimination. (Id.
at ¶ 2) On November 7, 2017, the EEOC issued a notice of
right to sue (issued on request) for EEOC Charge
17C-2017-00722. (Id. at 10) All EEOC notices advised
Plaintiff that her lawsuit "must be filed within 90
days" of receipt of the notice or her right to sue based
on the charge would be lost. The record does not contain a
notice of suit rights or a notice of right to sue for the
third charge of discrimination, EEOC No. 17C-2016-00244.
filed this lawsuit on January 8, 2018. She seeks compensatory
and other damages.
MOTION FOR DEFAULT JUDGMENT
has filed a motion for entry of default judgment. (D.I. 19)
Plaintiff moves for default judgment on the grounds that
Defendants failed to answer the complaint within the
time-frame required by the Federal Rules of Civil Procedure.
Defendants oppose (D.I. 24), and Plaintiff moves to dismiss
or strike their opposition. (D.I. 27)
seeking to obtain a default judgment must first request the
Clerk the Court to "enter ... the default" of the
party that has not answered the pleading or "otherwise
defend[ed]," within the time required by the rules or as
extended by court order. Fed.R.Civ.P. 55(a). Timely serving
and filing a motion to dismiss under Fed. R. Civ .P. 12(b),
precludes entry of default. See Francis v. Joint Force
Headquarters Nat'l Guard, 2006 WL 2711459 (D.N.J.
Sept. 19, 2006), aff'd in part, 247 Fed.Appx.
387 (3d Cir. 2007). Even if default is properly entered, the
entry of judgment by default pursuant to Rule 55(b)(2) is
within the discretion of the trial court. Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
there has been no entry of default. In addition, the motion
is premature, Defendants having appeared and timely filed a
motion to dismiss. Therefore, the Court will deny both
Plaintiffs motion for default judgment and Plaintiffs motion
to dismiss or strike ...