UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

GABRIEL M. ROBLES, Plaintiff – Appellant, v. AMARR GARAGE DOORS; ERIC HOLDER, Office of th e Attorney General; STATE OF KANSAS, Governor Sam Brownback; CITY OF LAWRENCE, KANSAS, Aron Crom well, Mayor, Defendants – Appellees. No. 12-3281 (D.C. No. 2:11-C V-02707-JAR-DJW) (D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , O'BRIEN , and MATHESON , Circuit Judges.

This appeal presents a very narrow issu e, one unrelated to the merits of the underlying claims. Specifically, it involves the pr opriety of the district court’s refusal to

* The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is submitte d for decision on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### February 4, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - enter default judgment against the defendants. Gabriel Robles filed a pro se employmen t discrimination complaint against Amarr Garage Doors (his former employer), the United States Attorney Gene ral Eric Holder, the State of Kansas and the City of Lawrence, Kansas, alleging violations of Title VII, the Age Discrimination in Employment Act (A DEA) and the Americans with Disabilities Act (ADA). 1 He also alleged the defendants conspi red “‘under color of law’” to violate his rights. (R. at 12.) Attached to the co mplaint was a right to sue letter from the Equal Employment Opportunity Commission (EEOC). Attorney General Holder, the State, and the City m oved to dismiss the entire complaint and Amarr moved to dismiss the civ il rights conspiracy claim. Believing the defendants had not timely answered his comp laint, Robles responded with motions for default judgment. The district court denied Robles’s motions. It explained: (1) after Attorney General Holder was pr operly served, he requested an d received an extension of time from the court in which to respond to the complaint, and his motion to dismiss was filed during the extension granted by the cour t; (2) the State and Amarr also received extensions of time in which to respond to the complain t, and their motions to dismiss were filed within the time extended to them ; and (3) the City filed a timely motion to dismiss in lieu of an answer. The court granted the defendants’ motions to dismiss. It conc luded Robles’s Title VII, ADEA and ADA claims agai nst Attorney General Holde r, the State, and the City

1 We liberally construe Robles’s pro se filings. See Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003).- 3 - should be dismissed for lack of jurisdiction based on Robles’s failure to name them in his EEOC charges. While the EEOC charges did name Amarr, the court nevertheless, sua sponte , dismissed Robles’s ADA claim agai nst Amarr because no ADA claim was included in the charges. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter juri sdiction, the court must dismiss the action.”). The court further determined Attorney Ge neral Holder and the State we re entitled to immunity on the civil rights conspiracy claim and the City and Amarr were entitled to dismissal of this claim because the facts supporting it were conc lusory and Robles had failed to allege any discriminatory animus or identify a federal ri ght of which he was deprived. These rulings resolved all but two claims: the Title V II claim and the ADEA claim (both against Amarr). The district court screened these two claims. See 28 U.S.C. § 1915(e)(2)(B) (allowing court to dismiss at a ny time a frivolous or malicious in forma pauperis complaint or one failing to state a claim upon which relief may be granted). 2 Although it found them wanting, it nevertheless gave Robl es an opportunity to amend his complaint as to these two claims. Robles filed an amended complaint and then a motion for default judgment against Amarr for allegedly failing to timely answer his amended complaint. Amarr filed a motion to dismiss. The court denied Robl es’s motion for default judgment because (again) Amarr had timely sought an extensio n of time in which to respond to the amended complaint and its motion to dism iss was filed within the requested time

2 The district court granted Robles leav e to proceed without prepayment of the filing fees.- 4 - extension. Thus, no answer was due unless the court denied the motion. 3 The court ultimately dismissed all of Robles’s claims. Robles’s sole complaint on appeal is th at the district court erred in denying his motions for default judgment as to Attorney General Holder and Amarr. We review for an abuse of discretion the denial of a motion for default judgment. Bixler v. Foster , 596 F.3d 751, 761 (10th Cir. 2010). A defendant normally has 21 days after proper service (or 60 days for a federal officer) in which to an swer a complaint. See Fed. R. Civ. P. 12(a)(1), (2). However, in lieu of an answer, a defendant may move to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(a)(4). If a Rule 12(b) motion is filed, an answer is not due until 14 days after notice of the court’s denial of the motion. See Fed. R. Civ. P. 12(a)(4). Here, the district court granted Attorney Genera l Holder an extension of time in which to respond to the complaint and he filed a motion to dismiss prior to the extended deadline. Similarly, Amarr obtained extensions of time in which to respond to both the initial complaint and am ended complaint. Both its mo tions to dismiss were filed within the extended time pe rmitted by the court. Therefore, no answer was due from either Attorney General Holder or Amarr until the court denied the motions. 4 As the district court correctly determined, a default judgment was not warranted. 5

3 The court did not specifically address Amarr’s request for an extension of time prior to the filing of its moti on to dismiss. Nevertheless, by considering and resolving the motion to dismiss, it implicitly gr anted the requested time extension. 4 Robles argues the second extension of time granted to Amarr to respond to the amended complaint was invalid because (1) it di d not consult with hi m prior to filing the- 5 - AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge

request for the extension as required by the district court’s local rules and (2) it was not entitled to an extension because the local ru les only allow for one extension of time and Amarr had already been granted a time ex tension concerning the initial complaint. Under Local Rule 7.1(A), before fili ng a non-dispositive motion, a party is required to confer or make reasonable good -faith efforts to confer with the opposing counsel or pro se party to resolve the matte r and shall state in the motion the specific efforts it made to comp ly with the rule. Amarr’s reque st for a time extension stated it attempted to contact Robles but was unable to reach him. Robles took issue with that statement in the district court. He claimed the Clerk’s office had his contact information and accused Amarr of lying to the court. On appeal, he again alleges Amarr never attempted to contact him, a dding only that all of his tele phones are equipped with the ability to view missed calls and receive voicemails. This eviden ce is insufficient to refute Amarr’s counsel’s claim she did in fact a ttempt to contact him but he could not be reached. In any event, the remedy for a violation of a local rule would not ordinarily be to enter a default judgment where, as here, Amarr did respond to the amended complaint. C.f. Johnson v. Serelson, 23 Fed. App’x 949, 952 n.1 (1 0th Cir. 2001) (request for default judgment based on claim defendants violated local rule by not filing their motion to dismiss simultaneously with their answer is “who lly without merit”); s ee also Hise v. Philip Morris, Inc. , 208 F.3d 226, No. 99-5113, 2000 WL 192892, at *3 (10th Cir. Feb. 17, 2000) (rejecting argument that default judgment was warranted based on summary judgment motion not containi ng a concise statement of num bered facts as required by local rules and Fed. R. Civ. P. 56). Finally, while Rule 6.1(A) only allows the parties to stipulate to one extension of time to a complaint, it does no t provide any limits on the num ber of extensions a party can seek upon motion to the court. 5 Robles often confuses the entry of defa ult, which is done by the Clerk, and the entry of default judgment which can be don e by the Clerk (if the claim is for a “sum certain”) or the judge. Compare Fed. R. Civ. P. 55(a) with Fed. R. Civ. P. 55(b). He was entitled to neither.