UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

GABRIEL M. ROBLES,

 Plaintiff – Appellant, 

v. 

AMARR GARAGE DOORS; ERIC 

HOLDER, Office of the Attorney General; 

STATE OF KANSAS, Governor Sam 

Brownback; CITY OF LAWRENCE, 

KANSAS, Aron Cromwell, Mayor, 

Defendants – Appellees. 

No. 12-3281 

 (D.C. No. 2:11-CV-02707-JAR-DJW) 

(D. Kan.) 

 

ORDER AND JUDGMENT*

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

This appeal presents a very narrow issue, one unrelated to the merits of the 

underlying claims. Specifically, it involves the propriety 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 submitted for decision on the briefs. 

This order and judgment is an unpublished decision, not binding precedent. 10th 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 Citation to unpublished decisions is not prohibited.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 the 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Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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notation B (unpublished).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
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enter default judgment against the defendants. 

 Gabriel Robles filed a pro se employment discrimination complaint against Amarr 

Garage Doors (his former employer), the United States Attorney General Eric Holder, the 

State of Kansas and the City of Lawrence, Kansas, alleging violations of Title VII, the 

Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities 

Act (ADA).1

 He also alleged the defendants conspired “‘under color of law’” to violate 

his rights. (R. at 12.) Attached to the complaint was a right to sue letter from the Equal 

Employment Opportunity Commission (EEOC). 

 Attorney General Holder, the State, and the City moved to dismiss the entire 

complaint and Amarr moved to dismiss the civil rights conspiracy claim. Believing the 

defendants had not timely answered his complaint, Robles responded with motions for 

default judgment. The district court denied Robles’s motions. It explained: (1) after 

Attorney General Holder was properly served, he requested and 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 court; (2) the State and Amarr also received 

extensions of time in which to respond to the complaint, 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 concluded Robles’s Title 

VII, ADEA and ADA claims against Attorney General Holder, 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). 
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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 against 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 jurisdiction, the court must dismiss the action.”). The court 

further determined Attorney General Holder and the State were 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 conclusory and Robles had failed to allege any 

discriminatory animus or identify a federal right of which he was deprived. These rulings 

resolved all but two claims: the Title VII 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 any 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 Robles 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 Robles’s motion for default judgment because 

(again) Amarr had timely sought an extension of time in which to respond to the 

amended complaint and its motion to dismiss was filed within the requested time 

 

2

 The district court granted Robles leave to proceed without prepayment of the 

filing fees. 
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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 that 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 answer 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 General 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 amended complaint. Both its motions to dismiss were filed 

within the extended time permitted 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 motion to dismiss. Nevertheless, by considering and resolving the 

motion to dismiss, it implicitly granted 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 did not consult with him prior to filing the 
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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 rules only allow for one extension of time and 

Amarr had already been granted a time extension concerning the initial complaint. 

Under Local Rule 7.1(A), before filing 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 matter and shall state in the motion the specific 

efforts it made to comply with the rule. Amarr’s request 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, adding only that all of his telephones are equipped with the 

ability to view missed calls and receive voicemails. This evidence is insufficient to refute 

Amarr’s counsel’s claim she did in fact attempt 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 (10th 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 “wholly without merit”); see 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 containing a concise statement of numbered 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 not provide any limits on the number of extensions a party 

can seek upon motion to the court. 

5

 Robles often confuses the entry of default, which is done by the Clerk, and the 

entry of default judgment which can be done 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.