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United States v. Gant

June 17, 2003

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GORDON GANT, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.

Document Nos. 5, 6

MEMORANDUM OPINION

GRANTING THE PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AND ASSESSING A CIVIL PENALTY AGAINST THE DEFENDANT

I. INTRODUCTION

Plaintiff United States brings this action against defendant Gordon Gant, a former Census Bureau employee of the Department of Commerce, for failure to meet his obligation under the Ethics in Government Act ("EIGA"), 5 U.S.C. app. 4 § 101 et seq., to file a financial disclosure report within 30 days of termination of his employment. The matter now before the court is the plaintiff's motion for entry of default judgment. Because the defendant has been essentially unresponsive and because the defendant has knowingly and willfully violated the EIGA, the court grants the plaintiff's motion, enters default judgment and assesses a civil penalty in the amount of $11,000 against the defendant.

II. BACKGROUND

On January 20, 2001, the defendant terminated his employment as a Senior Advisor with the Bureau of the Census within the Department of Commerce ("the Department"). Compl. ¶ 11; Pl.'s Mot. for Entry of Default J. ("Pl.'s Mot.") at 1. Approximately one month before the defendant departed, the Ethics Division of the Department's Office of the Assistant General Counsel sent the defendant a memorandum reminding him of his obligation under the EIGA to file a financial disclosure report within 30 days of the date of termination of his employment. Compl. ¶ 13; Pl.'s Mot. at 1, Ex. 1. On the date of his departure, the Acting Director for the Office of Executive Resources sent the defendant a second memorandum reminding him of his obligation to file the report. Compl. ¶ 14; Pl.'s Mot. at 2, Ex. 2.

Despite these written reminders, the defendant did not file the financial disclosure report by February 20, 2001, the date occurring 30 days after the termination of his employment. Compl. ¶ 15; Pl.'s Mot. at 2. On February 28, 2001, one week after the missed deadline, the Assistant General Counsel for Administration sent the defendant a certified letter, return receipt requested, noting that the defendant had failed to timely file his report, informing him of the availability of extensions, and setting forth the consequences of failure to file a report. Compl. ¶ 16; Pl.'s Mot. at 2, Ex. 3. Although the letter was accepted and the return receipt was signed by a Dolores R. Gant, the defendant did not file the report. Compl. ¶ 17; Pl.'s Mot. at 2, Ex. 4. On March 26, 2001, the Assistant General Counsel sent the defendant a second certified letter noting his failure to file the report, and informing him that he owed a $200 late-filing fee. Compl. ¶ 16; Pl.'s Mot. at 2, Ex. 5. Although this letter also was accepted, with the return receipt this time signed by the defendant, the defendant did not file the report. Compl. ¶ 17; Pl.'s Mot. at 2, Ex. 6. Five months later, on September 4, 2001, the Assistant General Counsel sent the defendant a third certified letter warning that if the Department did not receive a report from the defendant within 30 days, the Department would refer the matter to the Department of Justice. Pl.'s Mot. at 2, Ex. 7. Again, this letter was accepted, with the return receipt signed by Dolores R. Gant. Pl.'s Mot. at 2, Ex. 8. The defendant nonetheless failed to file the report. Compl. ¶ 17.

On November 21, 2002, the plaintiff filed its complaint alleging that the defendant violated the EIGA by knowingly and willfully failing to file a financial disclosure report and requesting civil penalties of $11,000 against the defendant. Compl. at 3. On December 1, 2002, the defendant was served. Aff. of Service. On December 26, 2002, three days after the deadline for a responsive pleading to the complaint, the defendant left a message with the plaintiff's counsel stating that he had received the summons and a copy of the complaint and would be contacting the court to request a court-appointed attorney so that he could"plead not guilty." Pl.'s Mot. at 2-3, Ex. B (Rivera Aff.) ¶ 3. On the same day, the plaintiff's counsel left a voicemail message for the defendant at his office, explaining that his response to the complaint was past due and that to avoid entry of default, the defendant should seek an extension of time to respond. Id. at 3, Ex. B (Rivera Aff.) ¶ 4. The plaintiff's counsel also attempted to reach the defendant at his home, leaving a message with her phone number. Id. at 3, Ex. B (Rivera Aff.) ¶ 5. The defendant did not return either message. Id. at 3, Ex. B (Rivera Aff.) ¶¶ 4-5. On January 22, 2003, the plaintiff's counsel sent the defendant a letter reiterating his obligation to respond to the complaint and stating that the plaintiff would move for entry of default judgment if the defendant did not respond. Id. at 3, Ex. B (Rivera Aff.) ¶ 6. The defendant did not respond. Id. at 3.

On February 4, 2003, the plaintiff moved the court for entry of default against the defendant.*fn1 On February 25, 2003, the clerk of the court entered default against the defendant. On March 17, 2003, the plaintiff moved the court for entry of default judgment against the defendant.*fn2 Pl.'s Mot. On May 28, 2003, the court issued an order directing the defendant to show cause as to why the court should not grant the plaintiff's request for default judgment in the amount of $11,000. Order dated May 28, 2003. The defendant having failed to respond, the court now turns to the plaintiff's motion for entry of default judgment.

III. ANALYSIS

A. Legal Standard for Entry of Default Judgment under Rule 55(b)(2)

A court has the power to enter default judgment when a defendant fails to defend its case appropriately or otherwise engages in dilatory tactics. Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). Rule 55(a) of the Federal Rules of Civil Procedure provides for entry of default"[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." FED. R. CIV. P. 55(a). Upon request of the party entitled to default, Rule 55(b)(2) authorizes the court to enter against the defendant a default judgment for the amount claimed and costs. FED. R. CIV. P. 55(b)(2).

Because courts strongly favor resolution of disputes on their merits, and because"it seems inherently unfair" to use the court's power to enter judgment as a penalty for filing delays, default judgments are not favored by modern courts. Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). Accordingly, default judgment usually is available"only when the adversary process has been halted because of an essentially unresponsive party[, as] the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his ...


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