IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID L. JOHNSON, AIS 134016, :

Plaintiff, :

vs. : CA 11-0228-CG-C

PENTON ASHWORTH, et al., :

Defendants. 

REPORT AND RECOMMENDATION

Defendant James English filed a motion to dismiss plaintiff’s first amended 

complaint1 on September 28, 2012 (Doc. 152). Through this brief report and 

recommendation, entered pursuant to 28 U.S.C. § 636(b), it is recommended that the 

Court STRIKE English’s motion to dismiss as untimely filed and order this defendant 

to answer the first amended complaint.

A review of the docket sheet in this matter reflects that on August 31, 2012, 

summons was issued in this case and directed to James English, 3193 Stanley Road,

Brewton, AL 36426, advising this defendant that a lawsuit had been filed against him 

and of his obligation to “serve on the plaintiff an answer to the attached complaint or a 

motion under Rule 12 of the Federal Rules of Civil Procedure[]” within “21 days after 

service” of the summons, discounting the date of receipt of the summons. (Doc. 141.) 

English was served with the summons and first amended complaint by certified mail on 

 1 Plaintiff’s first amended complaint was filed on July 20, 2012 (Doc. 111).

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September 4, 2012 (Doc. 145.);

2 therefore, the docket sheet reflects a corresponding 

answer due-date of September 25, 2012 (see id., Docket Sheet Entry for September 6, 

2012). English did not timely file an answer or motion to dismiss on or before 

September 25, 2012 (see Docket Sheet); instead, he filed the instant motion to dismiss on 

September 28, 2012 (Doc. 152) but no corresponding motion to file the motion to dismiss 

out-of-time (see Docket Sheet).

In addition to defendant English being specifically advised in the summons that 

his answer or motion pursuant to Rule 12 was due within 21 days after service of the 

summons (excluding the date of receipt) (Doc. 141), and the docket sheet reflecting an 

answer due-date of September 25, 2012 (Docket Sheet Entry for September 6, 2012), Rule 

12(a) of the Federal Rules of Civil Procedure unequivocally provides that “[a] defendant 

must serve an answer [or responsive pleading] . . . within 21 days after being served 

with the summons and complaint[.]” Fed.R.Civ.P. 12(a)(1)(A)(i). Inasmuch as the record 

in this case makes clear that English’s responsive pleading was due on or before August 

25, 2012, but he did not file his motion to dismiss until September 28, 2012, some three 

days late, his motion to dismiss is due to be STRICKEN FROM THE RECORD and he

should be ORDERED to answer plaintiff’s first amended complaint. Counsel for this 

defendant is certainly cognizant of the fact that dispositive motions are due in this case 

on October 19, 2012 (Doc. 81, ¶ 12)—less than three weeks away—and, therefore, the 

striking of the present motion will not foreclose the opportunity this defendant has, 

following the close of all discovery, to request summary disposition of the claims 

asserted against him in a timely and properly-supported dispositive motion.

 2 The person who signed the receipt for delivery of the certified mail was Jonathan 

English. (See id.)

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The instructions that follow the undersigned’s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

Judge.

DONE this the 1st day of October, 2012.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file specific written objections with 

the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of 

anything in the recommendation and will bar an attack, on appeal, of the factual findings of the 

Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); 

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for 

challenging the findings and recommendations of the Magistrate Judge is set out in more detail 

in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing 

a ‘Statement of Objection to Magistrate Judge’s Recommendation’ within ten 

days3 after being served with a copy of the recommendation, unless a different 

time is established by order. The statement of objection shall specify those 

portions of the recommendation to which objection is made and the basis for the 

objection. The objecting party shall submit to the district judge, at the time of 

filing the objection, a brief setting forth the party’s arguments that the magistrate 

judge’s recommendation should be reviewed de novo and a different disposition 

made. It is insufficient to submit only a copy of the original brief submitted to 

the magistrate judge, although a copy of the original brief may be submitted or 

referred to and incorporated into the brief in support of the objection. Failure to 

submit a brief in support of the objection may be deemed an abandonment of the 

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only 

the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and 

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case 

are adequate for purposes of review. Any party planning to object to this recommendation, but 

unable to pay the fee for a transcript, is advised that a judicial determination that transcription 

is necessary is required before the United States will pay the cost of the transcript.

 3 Effective December 1, 2009, the time for filing written objections was extended to 

“14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 

72(b)(2). 

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