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James v. A.C. Moore Art and Crafts Inc./Sbar's Inc.

United States District Court, D. Delaware

March 1, 2019

SHARON M. JAMES, Plaintiff,
v.
A.C. MOORE ARTS AND CRAFTS INC/SBAR'S INC., et al., Defendants.

          Sharon M. James, Wilmington, Delaware, Pro se Plaintiff.

          Wendy K. Voss, Esquire, and Jennifer Penberthy Buckley, Esquire, Potter Anderson & Corroon, LLP, Wilmington, Delaware. Counsel for Defendants.

          MEMORANDUM OPINION

          CONNOLLY, U.S. District Judge

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff alleges employment discrimination as a result of her employment with Defendant A.C. Moore Arts & Crafts, Inc. ("A.C. Moore").[1] 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.

         Plaintiff 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 8).

         On 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.

         Plaintiff filed this lawsuit on January 8, 2018. She seeks compensatory and other damages.

         II. MOTION FOR DEFAULT JUDGMENT

         Plaintiff 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)

         A party 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).

         Here, 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 ...


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